IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Damon L. Walburg,

Petitioner

 v.

Norm Robinson, Warden

Respondent

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:

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Civil Action 2:11-cv-01108

Judge Marbley

Magistrate Judge Abel

ORDER

Petitioner Damon L. Walburg, a State prisoner, brings this action under 28 U.S.C.

§2254 alleging that he is in custody in violation of the Constitution of the United States. 

This matter is before the Court on Magistrate Judge Abel’s December 23, 2011 Report

and Recommendation that the petition for writ of habeas corpus under 28 U.S.C. §2254

be denied. 

On January 5, 2012, petitioner Damon L. Walburg filed objections to the Report

and Recommendation. Petitioner argues that under state and federal law, a void

judgment, order or decree may be attached at anytime in any court either directly or

collaterally. Walburg maintains that three complaints were filed against him in

municipal court, all of which were dismissed by the judge at the request of the

prosecutor. Walburg argues that he should have been released from the county jail

rather than illegally bound over to the court of common pleas. He maintains that the

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judgments against him are void, and petitioner for writ of habeas corpus should be

granted. 

The Magistrate Judge correctly stated that a state prisoner seeking federal habeas

corpus relief must first exhaust the remedies available to him in the state courts. 28

U.S.C. §2254(b) and (c); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438

(1971). In Ohio, this includes direct and delayed appeal to the Ohio Court of Appeals

and the Ohio Supreme Court. Mackey v. Koloski, 413 F. 2d 1019 (6th Cir. 1969); Allen v.

Perini, 424 F. 2d 134, 140 (6th Cir. 1970). It also includes the remedy of a petition for

post-conviction relief under Ohio Revised Code §2953.21. Manning v. Alexander, 912 F.

2d 878 (6th Cir. 1990). A habeas petition in federal district court containing claims

which have not yet been exhausted must be dismissed. Rose v. Lundy, 455 U.S. 509, 102

S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Pilette v. Foltz, 824 F. 2d 494 (6th Cir. 1987). 

The petition alleges that Walburg appealed his convictions, which were affirmed

September 20, 2011 by the Ohio Court of Appeals for the Tenth Appellate District. He

did not move for leave to appeal to the Supreme Court of Ohio. 

A defendant has forty-five days after a Court of Appeals' decision affirming the

judgment of conviction to file a motion for leave to appeal to the Supreme Court of

Ohio. Rule II, §2(A)(1)(a), Rules of Practice of the Supreme Court of Ohio. Failure to

timely file a motion for leave to appeal waives the claims raised on direct appeal. See

Searcy v. Carter, 246 F.3d 515, 518-19 (6th Cir.2001). A delayed appeal is also available to

the Supreme Court of Ohio under Rule II, §8, Rules of Practice of the Supreme Court of

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Ohio. Having failed to file a motion for leave to appeal from the Court of Appeals'

decision affirming his conviction to the Supreme Court of Ohio, petitioner has not

exhausted his available Ohio court remedies.

Upon de novo review as required by 28 U.S.C. §636(b)(1)(B), the Court ADOPTS

the Report and Recommendation. 

The petition for writ of habeas corpus is DENIED. This action is hereby

DISMISSED. The Clerk of Court is DIRECTED to enter JUDGMENT for respondent.

 s/Algenon L. Marbley 

Algenon L. Marbley

United States District Judge

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